EBNER & SEAVER
[2020] FCCA 633
•20 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EBNER & SEAVER | [2020] FCCA 633 |
| Catchwords: FAMILY LAW – Parenting – whether a ten-year-old child should spend overnight with his father before a school day – whether the child’s passport should be held by the mother or the father. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 64B |
| Cases cited: Mazorski v Albright [2007] FamCA 520 |
| Applicant: | MS EBNER |
| Respondent: | MR SEAVER |
| File Number: | MLC 5581 of 2018 |
| Judgment of: | Judge Small |
| Hearing dates: | 5-6 August 2019 |
| Date of Last Submission: | 6 August 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 20 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Henwood |
| Solicitors for the Applicant: | Randles Cooper |
| Counsel for the Respondent: | Mr Stanley |
| Solicitors for the Respondent: | Palmer Stevens & Rennick |
ORDERS
All previous parenting orders in relation to the child X born … 2011 (“the child”) are hereby discharged.
The parents shall have equal shared parental responsibility for the long-term care, welfare and development of the child, including but not limited to decisions regarding the child’s:
(a)education, both current and future;
(b)religious and cultural upbringing;
(c)health;
(d)name; and
(e)living arrangements, in terms of any changes that would make it significantly more difficult for the child to spend time and maintain relationships with both his parents.
The parties shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility, as follows:
(a)each shall inform the other party about the decision proposed to be made;
(b)each shall consult with the other with a view to reaching terms upon which they may agree; and
(c)each shall make a genuine effort to come to a joint decision with the other party.
Notwithstanding orders (2) and (3) hereof, each party shall be responsible for the day-to-day care, welfare and development of the child at all times when he is in their respective care.
The child shall live with the mother.
The child shall spend time and communicate with the father:
(a)on each alternate weekend during school terms from the conclusion of school on Thursday to 7:00 p.m. on Sunday, or 7:00 p.m. on Monday if the Monday is a public holiday, commencing on the next weekend after the date of these orders that the child is due to spend weekend time with the father pursuant to previous orders;
(b)during school terms in each alternate week to the weekend time specified in sub-paragraph (a) from the conclusion of school on Thursday to the commencement of school on Friday;
(c)for half of all school term holidays by agreement between the parties in writing, and failing agreement, the first half in odd-numbered years from the conclusion of school on the last day of term until 6:00 p.m. on the second Saturday, and the second half in even-numbered years from 6:00 p.m. on the second Saturday to 6:00 p.m. on the last Sunday;
(d)for half of the long summer holidays each year by agreement between the parties in writing, and failing agreement, the first half in even-numbered years from the conclusion of school on the last day of the school year to 6:00 p.m. on the middle Saturday, and the second half in odd-numbered years from 6:00 p.m. on the middle Saturday to 6:00 p.m. on the last Sunday;
(e)on special occasions by agreement between the parties in writing and failing agreement:
(i)from 5:00 p.m. on Christmas Eve to 2:00 p.m. on Christmas Day in odd-numbered years;
(ii)from 2:00 p.m. on Christmas Day to 5:00 p.m. on Boxing Day in even-numbered years;
(iii)from the conclusion of school on the day before Good Friday to 6:00 p.m. on Easter Monday in even-numbered years;
(iv)on the child’s birthday in even-numbered years from the conclusion of school to 7:00 p.m. if a school day, and from 10:00 a.m. to 2:00 p.m. if not a school day, and in odd-numbered years from the conclusion of school, or 3:30 p.m., to 7:00 p.m. the day before the birthday if the birthday falls on a school day, and from 2:00 p.m. to 6:00 p.m. if the birthday falls on a non-school day;
(v)from 6:00 p.m. on the evening before Father’s Day to 6:00 p.m. on Father’s Day each year should the child not otherwise be spending time with the father pursuant to these orders;
(vi)by telephone, Skype, FaceTime or other electronic means at any time at the child’s instigation, and at the father’s instigation, on each Tuesday at 7:30 p.m., and, in addition to the Tuesday contact, on each Saturday during school holidays at 9:00 a.m., with the mother to ensure that the child has access to a fully charged telephone, tablet or computer, that he is available to take the call, and that he has privacy during the call;
(f)at other times by agreement between the parties in writing.
If necessary, the child’s time with the father shall suspend on the following occasions:
(a)From 6:00 p.m. on Christmas Eve to 2:00 p.m. on Christmas Day in even-numbered years;
(b)from 2:00 p.m. on Christmas Day to 6:00 p.m. on Boxing Day in odd-numbered years;
(c)from 6 p.m. on the evening before Mother’s Day each year;
(d)from the conclusion of school on the day before Good Friday to 6:00 p.m. on Easter Monday in odd-numbered years;
(e)on the child’s birthday in odd-numbered years from the conclusion of school to 7:00 p.m. if a school day, and from 10:00 a.m. to 2:00 p.m. if not a school day, and in even-numbered years from the conclusion of school, or 3:30 p.m. to 7:00 p.m. on the day before the birthday if the birthday falls on a school day, and from 2:00 p.m. to 6:00 p.m. if the birthday falls on a non-school day;
(f)by telephone, Skype, FaceTime or other electronic means at any time at the child’s instigation, and on each Tuesday that the child is not in the mother’s care between 7:00 and 7:30 p.m. at the mother’s instigation, with the father to ensure that the child has access to a fully charged telephone, tablet or computer, that he is available to take the call, and that he has privacy during the call; and
(g)at other times by agreement between the parties in writing.
Where the child’s time with the father is specified to commence at the conclusion of school or conclude at the commencement of school, changeover shall take place at the child’s school, and at all other times, unless the parties agree in writing on another changeover venue no less than 48 hours before the changeover, the mother shall deliver the child to the father’s home at the commencement of time and the father shall deliver the child to the mother’s home at the conclusion.
Each parent shall ensure that the child has the appropriate school uniform, other clothing, school supplies and belongings when he travels between their homes, and any clothing that travels with him shall be in an appropriately clean condition.
The child’s time with the father pursuant to paragraphs 6(a) and (b) hereof shall suspend during all school holiday periods and shall recommence after the school holidays as if the holidays had not intervened.
Save in the case of emergency, the parties shall communicate with each other using an application such as “2houses” or “My Family Wizard”.
The parties shall keep each other informed as to their respective residential addresses and contact telephone numbers at all times.
The parties are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the child and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;
(b)discussing these proceedings or any parenting disputes or issues in the presence or hearing of the child, save to explain any changes in his living arrangements to him as a result of these Orders, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;
(c)questioning the child about the personal life of the other parent or members of their household; and
(d)allowing the child to read, have read to him, or otherwise access any part of the Court’s Reasons for Judgment in this matter.
Each party shall notify the other as soon as practicable in the event of the child suffering any serious illness or injury while he is in their respective care, and each shall authorise any medical or dental practitioner who treats the child to communicate and consult with the other parent.
Each party shall advise the other of any medication prescribed for the child while in their respective care, including the dosage and frequency prescribed, and each shall ensure that such medication travels between their houses with the child, and that any such medication is taken in accordance with its prescription.
The mother shall authorise any school or extra-curricular activity in which the child is enrolled to provide to the father at his expense all information, notices, photographs, reports and like materials, and he shall be named as a contact person in the records of such school or organisation in the event of any emergency involving the child.
Both parties and their partners shall be at liberty to attend any school functions, extra-curricular activities or events to which parents are usually invited, and the father shall inform the mother of his intention to attend such a function or event no later than 48 hours prior.
The parties are hereby restrained by injunction from drinking to excess (that is, having a blood alcohol reading of .05 or more) for 24 hours prior to and during all times when the child is in their respective care.
The father shall:
(a)engage/re-engage with his psychologist Ms A, or such other psychologist or counsellor as she might recommend, for the purposes of counselling in relation to his alcohol consumption and the breakdown of his marriage to the mother, and he shall follow all lawful directions of that counsellor and remain engaged in such counselling until the counsellor is satisfied that counselling is no longer required;
(b)enrol in, attend and complete:
(i)a Men’s Behavioural Change Program; and
(ii)the “Tuning into Kids” program;
and he shall provide to the mother certificates of completion for each of those courses as soon as they have been obtained.
The parties shall do all such acts and things and sign all such documents as might be necessary to renew the child’s passport at least three months prior to its expiry date.
The mother shall retain the child’s passport, and in the event of the father travelling overseas with the child, he shall return the child’s passport to the mother within seven days of the child’s return to Australia.
Should either parent wish to take the child overseas, save in the case of a genuine emergency involving the father’s immediate family, he/she shall notify the other no less than two calendar months prior to departure, and no later than 14 days prior to the scheduled departure, he/she shall provide a full travel itinerary for the child, including copies of return air tickets, times and means of travel, accommodation details, and contact numbers where the child might be reached while he is away.
Neither party shall unreasonably withhold his/her consent to the child travelling overseas if the proposed time is within school holidays, is for no more than three weeks, and occurs during the time the child is scheduled to be with the travelling parent.
All extant Applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Ebner & Seaver is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5581 of 2018
| MS EBNER |
Applicant
And
| MR SEAVER |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting matter between Ms Ebner (“Ms Ebner” or “the mother”) and Mr Seaver (“Mr Seaver” or “the father”).
There is one child of the relationship, namely X born 31 March 2009 (“X” or “the child”).
X lives with his mother and currently spends time with his father on alternate weekends from after school on Friday until the commencement of school Monday, and each Wednesday with alternate Wednesdays being extended until the commencement of school on Thursday. Changeovers currently occur either at X’s school or at the front gate of the mother’s property.
To the parties’ great credit, they were able to agree on almost all parenting issues, and the matter actually tried was one of the narrowest disputes I have seen in this Court.
The mother wants X’s weekend time with his father to be shortened so that he returns to her care at 7:00 p.m. on Sundays, and his midweek time to be amended so that he does not spend the alternate Wednesday overnight.
The father seeks Orders for X to spend time with him on each alternate weekend from the conclusion of school on Thursday to the commencement of school on Monday, and in each other alternate week from the conclusion of school on Thursday to the commencement of school on Friday.
In addition, the father seeks to be able to speak to X by telephone twice each week, whereas the mother wants only one telephone call per week; the father wishes for either party to be able to take X overseas for a period not exceeding four weeks, while the mother seeks to restrict that time to two weeks; and both parties want to hold X’s passport after any overseas travel.
Therefore, the issues to be decided in this case are::
A.whether X should continue to spend alternate weekends with his father for three nights, or for four nights;
B.whether X should spend each Wednesday evening with his father from after school to 7:00 p.m., or whether that time should be an overnight and changed to Thursday;
C.whether the father ought to be permitted to telephone X once per week or twice;
D.whether the parties ought to be able to take X overseas for a period of up to four weeks or only for two weeks; and
E.whether the mother or the father should hold X’s passport after any overseas travel.
As far as other orders are concerned, I have, as far as possible, taken the meaning and intent of the orders I have made, with only minor adjustments, from the document headed “Minute of Order identifying issues in dispute and by consent” provided to my Chambers by the parties on 9 August 2019.
Background
Ms Ebner is 41 years of age, having been born on … 1978. Ms Ebner is currently employed as a Manager.
Mr Seaver is 35 years of age, having been born on … 1984. He is employed as a manager at Employer B in Suburb C.
The parties began living together in 2005 and X was born on … 2009. The parties married on … 2011 and separated in October 2017.
Both parties had repartnered at the time of trial, with the father living with Ms D (“Ms D”), and the mother involved in a non-cohabitation relationship with Mr E.
Final Hearing in relation to parenting matters commenced on 5 August 2019 and the matter ran for 2 days. I had bifurcated the parenting and property matters at an earlier hearing. The mother and the father were both represented by counsel.
Witnesses at trial included the mother, the father, the Family Report writer, Ms F (“Ms F”), and the father’s partner, Ms D.
Following the conclusion of evidence I reserved my decision, and the property aspects of the matter were adjourned to a date to be fixed.
On 9 August 2019, my chambers received an emailed minute of proposed orders which made clear which of those orders were agreed and which were disputed.
Final property orders were made by consent in chambers on 2 October 2019.
Issues and Evidence
It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including my notes and the demeanour of the parties at trial, and the entire trial transcript, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.
Issue A: whether X should continue to spend alternate weekends with his father for three nights, or for four nights
An order providing for a child to spend time with a parent is a “parenting order” under s64B of the Family Law Act 1975 (Cth) (“the Act”).
The law in relation to parenting orders is found in Division 5 of Part VII of the Act.
S. 60B sets out the objects and principles of Part VII and I set them out here for the benefit of the parties.
Section 60B(1): The objects of this part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse and neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2): the principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA states that when deciding whether to make a parenting order, the court must regard the best interests of the child as its paramount consideration.
Section 60CC then sets out the factors the court must consider when deciding what orders would be in the child’s best interests, and I will address each of those factors in turn.
There are two primary considerations set out in s.60CC(2) as follows:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
The meaning of the term “meaningful relationship” has been addressed in several cases that have come before this court and the Family Court of Australia.
In an oft quoted passage from the judgment of Brown J in Mazorski v Albright [2007] FamCA 520, Her Honour said at paragraph 26:
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
That is, the meaningfulness of a relationship between a child and his/her parents is measured by the quality of the time spent and not by the amount of time.
In this case, there is no doubt that X’s relationship with his mother is “meaningful” in the terms set out by Brown J. Ms Ebner has been X’s primary carer for his whole life, and Ms F described him as “relaxed in the maternal presence” in the Family Report.
There is also little doubt that X’s relationship with his father is also “meaningful” in the above terms. Save for the seven months post separation when X spent no time with his father because of the mother’s concerns about the father’s alcohol consumption, he has been seeing his father regularly pursuant to Court Orders since July 2018.
X is described as appearing “comfortable in the paternal presence” in Ms F’s Report, and he told Ms F that he wanted to spend more time with his father, which indicates that X sees that relationship as meaningful.
In Tait & Densmore [2007] FamCA 1383, Cronin J said, at paragraph 170:
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
In other words, the meaningfulness of a child’s relationship with his/her parents is enhanced when a parent provides a role model for the child and teaches the child by example what it is to be a citizen, a family member and a parent.
If what the mother says about the father’s violent and abusive behaviour during the marriage is true, he did not provided a particularly positive role model for X, and the converse is also true, because each party accuses the other of behaviour that falls within the definition of family violence in s.4AB of the Act.
Whether or not Mr Seaver’ behaviour was, as he claims, in response to aggressive behaviour on the part of Ms Ebner, one cannot be a good parent and an abusive partner at the same time, and the conflict between X’s parents has no doubt impinged upon the meaningfulness of his relationship with both.
What is clear from the evidence of both parties is that X has been caught in the middle of this dispute his whole life, as the parents describe a relationship characterised by volatile arguments and some physical abuse. I note that the first Family Violence Intervention Order between them was the result of police intervention in 2009, less than a year after X’s birth, and before the parties married. I note further that X told Ms F at the Family Report interviews that his parents had been “always fighting” before they separated.
That volatility was exacerbated when the parties separated, and particularly during the period that X was not seeing his father, and it would appear that it is only fairly recently that the matter has settled down to the point where the parties were able to agree on the most important matters in relation to X’s care in these proceedings.
I will return to the issue of family violence later in these Reasons, but I note in this context that X has witnessed some of the volatility in his parents’ relationship from a very early age, and it is to be hoped that he does not think it normal for parents to behave towards each other in such abusive ways.
S.60CC (2A) states that when a court is applying the considerations set out in subsection (2), it must give greater weight to the consideration set out in paragraph (2)(b).
In other words, in drafting Orders in relation to X’s care, I must take the need to protect X from harm from being exposed to family violence as the most important consideration.
S.60CC(3) then sets out 14 “Additional considerations” as follows:
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
X told Ms F that he wanted to spend more time with his father but that he wanted the time to be more flexible, although he said that he did not want the Wednesday time to be overnight.
It is abundantly clear from the evidence of both parties that they have involved X in this dispute. He presented to Ms F as fully aware of the proposals of both parties, as knowing that his mother had rejected his father’s (then) proposal that he live with his parents in a week about arrangement during school terms, and he expressed some frustration at the fact that his parents “never talk, they only message each other, I know they are fighting and it feels weird”.
X is now almost 11 years old and his views cannot help but have been influenced to some extent by what his parents tell him. He is reported to have “expressed some confusion that ‘mum and dad say different things’ ”.
Therefore, while I take his views into account, I consider them to be those of a child trying to please both parents, but who is clear that he wants to spend more time with his father.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
X’s relationship with each parent is reported to be loving, positive and close. Both parties, and Ms F, report him being very relaxed and comfortable with both parents.
His relationship with his mother is close, strong, loving and appropriate, and he has lived with her for his whole life. She looks after him on a daily basis and he sees her as his primary carer.
At her interview for the Family Report, Ms Ebner described her relationship with X as “more engaged since separation”, saying that “we can talk”.
Mr Seaver described X’s relationship with his mother as “overall it is good but they have their clashes”.
X’s relationship with his father is a little different. It is the mother’s evidence that Mr Seaver was an emotionally absent father during the parties’ marriage, particularly because of the level of his alcohol consumption. For seven months after separation X did not see his father, and their time together was supervised for some time after that.
Nevertheless, it would appear from all the evidence before the court, that their relationship has developed to the point where X very much enjoys the activities he engages in with his father, describing him to Ms F as “a ‘boy dad, he likes to play and acts like a boy’ ”. He told Ms F that it was “important to him to be able to spend time with his father and ‘to do stuff with him’ ”.
Ms Ebner reported to Ms F that she saw Mr Seaver’ relationship with X as “more like mates, the time with [Mr Seaver] is busy and is about having fun”. She expressed a concern at trial that all the activities that father and son engage in exhaust X, and he comes home from weekends with his father tired and a little reserved and fractious.
Mr Seaver described his relationship with X to Ms F in the following terms: “it is good, he wants more time with me, it is an open and honest relationship, we like camping, fishing and the outdoors”.
Ms F describes Mr Seaver, during his observation session with X, as being “able to focus on X during the observation period however was close to tears upon his departure from the consulting room”.
She describes Ms Ebner as “appropriate and attentive in her responses with X on the day”.
The court has no concerns about the nature of the relationship between X and either of his parents.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
Again, Ms Ebner has cared for X all his life. She says that Mr Seaver was not concerned about making decisions in relation to X’s major issues during the marriage, although they were able to agree on the primary school X attends, and it would appear that they have also agreed on the high school he will attend.
After separation in late 2017, Mr Seaver did not see X for seven months because Ms Ebner was concerned about his alcohol consumption and about the violent and abusive behaviour he had inflicted upon her. She wanted to have any agreement about X’s care in writing before she felt comfortable about X spending time with his father.
Since the commencement of these proceedings in 2018, Mr Seaver has taken every opportunity to spend time and communicate with X, and I note that there was a period of supervised time after initial orders were made by consent on 3 July 2018.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
Ms Ebner has supported X, materially, emotionally, and financially, since separation.
Mr Seaver pays child support for X pursuant to a Child Support Assessment issued by Services Australia (Child Support). He also supports X during times that X spends with him.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
There is no suggestion in these proceedings that X will be separated from either of his parents for any great period of time in the future, although he described his separation from his father in the seven months after his parents separated as “weird” when speaking to Ms F.
The change in his circumstance contemplated in these deliberations does not involve any major change to his current living arrangements, and gives X a little more time with his father.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
At the time of trial, the parties were living relatively close to each other, with the mother living in the former family home at Town G and the father renting a property at Town H, a distance of approximately ten kilometres.
I note that the final property Orders made by consent on 2 October 2019 provide for the family home to be sold, and it was expected that that would happen by the end of 2019.
While the Court is unaware of the outcome of that sale, the final property Orders provided for Mr Seaver to receive 45 per cent of the net sale price, and the remainder was to be retained by Ms Ebner.
I must therefore make these Orders in ignorance of any practical difficulties which might be caused by the distance between the parties’ homes, although there was no indication at trial that that was likely to be a problem.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There is little doubt that both parents are able to provide for X’s material needs. He is appropriately housed, fed, and clothed while in each parent’s care, although the mother has some minor complaints about Mr Seaver not washing X’s clothes.
The mother was concerned at trial that he was a little behind in educational terms, and that the father did not prioritise his homework when he was in his care.
The father denied that he neglected X’s homework and expressed a wish to help him and have more involvement in his schooling as time goes on.
The fact that both parents have clearly involved X in these proceedings indicates that they have some deficiencies in meeting his emotional needs.
It is vital to X’s ability to cope with his parents’ separation that he does not become embroiled in their animosity towards each other. Their relationship as a married couple is over, but they will be X’s parents for the rest of their lives, and he should not be burdened by any lingering issues from their marital relationship.
Ms F was clear about that fact in her evidence at trial, and she emphasised the need for the parents to provide consistency in their care of X so that he experiences stable parenting.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
X is almost eleven years old. He is completing his primary school education and will attend high school in 2021. He is, by all accounts, a delightful young boy who is meeting all his developmental milestones, although there are some concerns, perhaps historical now, about his educational progress.
The maturity of the parents in their conflictual interaction with each other was of some concern to the Court leading into the trial.
Ms Ebner saw Mr Seaver as an alcohol abuser who had been abusive to her and who had little insight into their son’s needs. She was both angry with and disappointed in him, and there was a residual fear of him as well.
Mr Seaver saw Ms Ebner as a vindictive ex-wife who wanted to punish him for the failure of their marriage by denying him a relationship with his son.
However, at trial, while it was clear that there is still some residual animus between the parties, I was impressed by their apparent maturity in terms of what they wanted for X.
Ms Ebner was very clear that she wanted X to have a positive relationship with his father, and she understood that he needed to spend significant time with him as he approaches his adolescence. That is not to say that she does not retain concerns about Mr Seaver’ ability to meet X’s needs, but that overall, she displayed a mature and considered attitude to those needs.
Mr Seaver was very clear that he wants to be more than a good-time father, and while his answers to questions in cross-examination were sometimes guarded and evasive, he impressed as having come to the realisation that he could not continue to live his life the way he had been living during the relationship and marriage to Ms Ebner.
Neither party took real responsibility for the nature of their highly conflictual relationship, both blaming the other for its genesis, but they were very clear about wanting what is best for X.
There are no particular cultural issues in these proceedings, although I note that the father is a New Zealander by birth, and that the paternal grandfather and other family members live there.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
There is no evidence before the Court that would indicate that X has any Aboriginal or Torres Strait Islander heritage.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The mother’s attitude to X is one of care and protection. She understands that he needs to see his father, and is happy for that to happen, as long as X is safe.
Apart from her contribution to her conflictual relationship with Mr Seaver, there is little to criticise in the execution of her parenting responsibilities.
The father’s attitude to X is also one of love and care, and while I am critical of his behaviour during the marriage and immediately after separation, I am satisfied that he now wants only what is best for X.
(j) any family violence involving the child or a member of the child’s family;
This was a major issue between the parties during and after their relationship.
Ms Ebner’s evidence is that during the relationship, Mr Seaver was an habitual drunkard who abused her verbally, and on at least one occasion, kicked her body and punched her in the face, leading to police involvement and the first Intervention Order between the parties being put in place in December 2009.
The mother particularises the abuse she suffered throughout the relationship and marriage in some detail, describing how the father regularly called her derogatory names, accused her of being unfaithful to him, told him he had been unfaithful to her, threw his phone at her, told her she was fat and that he could “do better”, vomited in the house after drinking excessively, and yelled at her often.
She also describes him as regularly retreating to a shed on the property, where he drank large amounts of alcohol before coming back to the house in a drunken and aggressive state. It is her evidence that Mr Seaver habitually drank 50 to 60 standard drinks per week, which, if true, would certainly indicate that he had a real problem with alcohol addiction.
Mr Seaver denies that level of consumption, but it is evident that he did consume considerably more than the one or two drinks per day said to be a “safe” level for most adults.
On the night of 18 December 2009, when she says that Mr Seaver punched and kicked her, Ms Ebner claims that her nose was broken and that she suffered two black eyes. She left the parties’ home and went to a neighbour who called the police. While an Intervention Order was issued against Mr Seaver, he was never charged with any offences against Ms Ebner.
Ms Ebner is candid about her part in the events of that night, deposing that she had retaliated when Mr Seaver threw a phone at her by throwing it back, but she then describes how he followed her to the ensuite bathroom, and kicked her body and punched her face while she was on the ground attempting to protect her head.
In his initial response material, Mr Seaver denied responsibility for the volatile relationship that existed between him and his wife, and particularly denied that he had ever hit Ms Ebner.
However, he admitted that he had indeed hit Ms Ebner in his interview with the Family Consultant conducting the s.11F Child Dispute Conference early in these proceedings, and professed genuine remorse at having done so.
The father denied at trial that he had punched Ms Ebner on 18 December 2009, or that he had broken her nose on that occasion, and appeared to minimise the seriousness of his drinking problem during the marriage in general.
The incident of 18 December 2009 was a serious example of physical family violence, and whether or not her nose was broken, Ms Ebner was injured and seriously frightened by the father’s behaviour on that night. I note that X was about nine months old and in the house at that time.
It was the father’s evidence at trial that while he might have consumed alcohol “excessively” during the relationship and marriage, he did not believe he had “abused” it, but it is clear from the evidence of the mother, which I accept, that he indeed drank excessively during the marriage, and that his reported behaviour when intoxicated comes under the definition of family violence set out in s.4AB of the Act.
Mr Seaver’ evidence is that in general, his abuse was in response to abuse levelled at him by Ms Ebner - in other words, that she provoked him. That is not an unusual statement made in this Court by people accused of family violence, but the long-term nature of the abuse in this case, and its escalation when he had been drinking, is cogent evidence in my view that Mr Seaver was the primary aggressor.
Text messages annexed to Affidavits portray an angry, foulmouthed man showing a great sense of entitlement while holding the mother of his son in contempt. If Mr Seaver sent those texts when sober, that fact would only add to the violence of the abuse.
That is not to say that Ms Ebner did not contribute to the volatility of the relationship. There were certainly occasions when she responded in an abusive way, and for some of the time at least, the abuse could be seen as mutual. Nevertheless, I am satisfied that the majority of the blame for the relationship’s volatility lies at the feet of Mr Seaver.
I note, in this context, X’s comment to Ms F that his parents were always fighting, which means that he was exposed to the abuse. The parties should be aware that exposing a child to family violence is in itself an act of child abuse under s.4 of the Act.
I note too that Ms D’s evidence is that she simply does not recognise the man portrayed in Ms Ebner’s Affidavit material, and that he is a warm and caring partner to her. She says that he has never behaved in any kind of abusive manner to her during their relationship.
I accept that evidence, which was thoroughly tested at trial.
Sometimes, it is the particular combination of personality traits which results in unacceptable, and sometimes criminal behaviour between parties to a relationship, and it is often the case that previous and/or subsequent partners do not see that side of a person’s character. That diminishes neither the effect of the abuse in this relationship in both the short and longer terms, nor its seriousness.
In addition, the evidence of both Mr Seaver and Ms D at trial, which I also accept, is that Mr Seaver no longer drinks alcohol at the level he did while married to Ms Ebner. He has had two recent promotions at work, and he is required to provide randomly ordered urine samples which are tested for the presence of drugs or alcohol as part of his work obligations. It is his uncontroverted evidence that he has never returned a positive test.
If he has indeed changed his ways as he asserts, it can only benefit X – not only in his father being more present when he spends time with him, but also in his mother not having to worry about the father’s alcohol consumption, and his subsequent lack of physical and emotional containment, at those times.
The parties have agreed to an Order which will restrain both from having a blood alcohol reading of .05 or more for 24 hours prior to and during all times when X is in their respective care. That is a serious restriction, but both parties agreed that such a restraint was in X’s best interests, and that is greatly to their credit.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
The police applied for and obtained an Intervention Order on behalf of Ms Ebner and against Mr Seaver after the incident when they were called by the parties’ neighbour in late 2009. That Intervention Order was pursued by the police despite Ms Ebner not wishing it to proceed, and a Final Order was made on 21 December 2009 by consent, but without Mr Seaver admitting any of the allegations set out in the Application and Warrant.
That Order allowed Mr Seaver to remain at the family home as long as he did not commit family violence or damage property, but I note that he took himself to New Zealand to visit his family, and to “relax and complete anger management” according to Ms Ebner’s Affidavit sworn 18 and filed 22 May 2018, for some four weeks thereafter.
I am unaware whether Mr Seaver was ever found to be in breach of that Order, but I am sure the parties would have mentioned that at trial if it had been the case.
The second Intervention Order was taken out by Ms Ebner at the time of separation on 4 December 2017. The Interim Intervention Order made on that day named Ms Ebner and X as Affected Family Members and was a full exclusion order in terms of the parties’ proximity, while it allowed for negotiations and orders to be made in family law proceedings. A Final Order was made on 24 January 2019, again by Consent, but without Mr Seaver admitting to any of the allegations contained in the Application and Summons.
That Order lasted until 20 January 2020 and has now expired. The Court in unaware whether there have been any allegations of breach in the period between the end of the trial and the Order’s expiry date.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The Orders I propose to make are intended to be Final Orders.
However, it is always possible that X’s needs might change over the years, and that certain Orders might no longer be relevant or appropriate.
In that case, the parties will need to comply with s.60I of the Act and attend a family dispute resolution practitioner for mediation before initiating any further proceedings.
(m) any other fact or circumstance that the court thinks is relevant.
I take into account in this context the fact that X will be going to high school in the next couple of years. That is a significant transition for any child, and it is important that he has every opportunity to make that transition secure in the knowledge that both his parents love him and will protect him, while allowing for the increase in autonomy that accompanies every child’s journey from childhood to adolescence.
Decision: Issue A
When I consider all the evidence and law as set out above, I find that it is in X’s best interests to craft a regime which provides consistency for him, and which provides him with significant time with both parents as he makes the transition from childhood to adolescence.
I will therefore make Orders which provide for him to spend four nights per fortnight during school terms, half his school holidays, and other special occasions in his father’s care.
The four nights per fortnight will be structured so that he spends every Thursday night overnight with his father, and in every second week, that time will extend to Sunday evening.
In that way, he has a consistent routine, and his father has the opportunity to be involved in his school activities and homework as well as having alternate weekends to engage in the activities that both enjoy so much. At the same time, X will have the opportunity on Sunday evenings to settle back into the routine of his mother’s home before going back to school on Monday.
Issue B: whether X should spend time with his father each Wednesday evening from after school to 7:00 p.m. or whether that time should be an overnight and changed to Thursday
It was the mother’s evidence at Court that X comes home tired from his overnights with Mr Seaver. She is concerned that he stays up late and is engaged in activities that exhaust him so that he finds it difficult to concentrate at school the next day.
It is up to Mr Seaver to ensure that X gets the rest he needs and that his activities are balanced with his developmental and educational needs. He made much at trial of wanting to be more than a “Disney Dad” and of being interested in X’s education and day-to-day life.
The regime I have decided upon will give him the opportunity to be that father. It is up to him to show Ms Ebner and X that he has indeed matured, and can balance his life with X in a way that caters for X’s needs.
Decision: Issue B
It follows from Decision A above that X’s Wednesday time with his father will not continue at all. It will be replaced by an overnight each Thursday which will be consistent with his alternate weekend time and will provide him with block time with his mother as well.
Issue C: whether the father ought to be permitted to telephone X once per week or twice
Current orders, those made by consent on 3 July 2018, provide for the father to telephone X each Tuesday evening at 7:30 p.m.
There is little specific evidence upon which to found a decision about whether that should increase to twice per week or remain at once.
On the basis of the evidence of Ms F about X’s needs as he transitions to adolescence, I find that it is appropriate for X to contact his father by telephone, Skype or some other electronic means at any time he chooses, but there is no reason for Mr Seaver to need to speak to X any more than one additional time per week, especially as he will see X on each Thursday during school terms.
However, during school holidays, when X will not be spending time with his father every week, it is appropriate that Mr Seaver be able to contact him on one additional occasion.
Decision: Issue C
Therefore, I will make an Order that X be able to contact his father at any time, that Mr Seaver be able to contact him, save in the case of emergency, on each Tuesday evening at 7:30 p.m. during school terms, with an additional contact on each Saturday at 9:00 a.m. during school holidays when X is not spending time with him.
Issue D: whether the parties ought to be able to take X overseas for a period of up to four weeks or only for two weeks
X has school term holidays for three fortnights each year, and long summer holidays for about six weeks.
The parties will share that time, so that the most time each will have X in their care in school holidays will be three weeks.
X is now almost 11 and no doubt would be excited to visit other countries, and especially to go to New Zealand to visit his paternal family.
Decision: Issue D
In the above circumstances, I will order that either party can take X overseas for no more than three weeks during their time with him, unless they agree otherwise in writing.
That should allow for certainty at times when they do not agree about how long he is to be away, and flexibility for times when they can agree on a longer period.
Issue E: whether the mother or the father should hold X’s passport after any overseas travel.
The fact that this dispute did not resolve indicates that these parties have some way to go before they can be said to be truly co-parenting.
There is no evidence before the Court that the father will take X overseas, and more particularly, to visit his family in New Zealand, at times not permitted by these Orders without his mother’s consent.
There is similarly no evidence that the mother is likely to take X out of the country without the father’s consent.
X lives with his mother. Therefore, in my view, there is no reason for the father to hold the passport when X is in Australia. Indeed the father’s wish to hold the passport could be seen as a way to further control the mother, and I will ensure that I make provision for some certainty in relation to the passport’s whereabouts so that there can be no dispute.
Decision: Issue E
As a matter of practicality, as X lives with his mother, I will make an Order that she hold his passport in her safekeeping when X is in Australia.
Conclusion
At one level, these have been trivial issues: four nights or five; one call or two; two weeks or four; and where the child’s passport is to be held.
That the parties were able to settle their not-inconsiderable property dispute, and parenting matters of parental responsibility and where X will live primarily, tells me that they simply needed to fight about something, with both wanting their positions and views about the other vindicated.
Perhaps now that those smaller issues have been resolved – at considerable expense to both parties no doubt – they can get on with their lives and their relationships with their dearly loved young boy.
I am sure he will appreciate the clean air.
I certify that the preceding one hundred and forty four (144) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 20 March 2020
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Injunction
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